Jordan v. State

• Decision Date: 12 June 1996
• Docket Number: No. 831-94,831-94
• Citation: 928 S.W.2d 550
• Parties: Alton Craig JORDAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 550

928 S.W.2d 550

Alton Craig JORDAN, Appellant, v. The STATE of Texas, Appellee.

No. 831-94.

Court of Criminal Appeals of Texas.

June 12, 1996.

Wes Ball, Arlington, for appellant.

Danielle A. LeGault, Assistant District Attorney, Fort Worth, for appellee.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

A jury convicted appellant of the offense of aggravated robbery and assessed punishment of life imprisonment. The Court of Appeals affirmed. Jordan v. State, 877 S.W.2d 902 (Tex.App.--Ft. Worth 1994). We granted appellant's petition for discretionary review to address the admissibility of expert testimony on the issue of eyewitness identification under Texas Rule of Criminal Evidence 702. ¹

Roy Briggs was working at a Seven-Eleven in Mansfield, Texas at about 2:30 a.m. on January 23, 1991, when two men entered the store. One of the men, whom Briggs later identified as appellant, pulled out a gun and asked Briggs where the cigarettes were kept. Briggs took appellant to the storeroom where appellant ordered him to fill a trash can with cigarettes and carry it to a white pick-up truck outside. Briggs then loaded two more trash cans full of cigarettes into the pick-up. Shortly thereafter Briggs concluded that he was about to be shot so he shoved a trash can out the door and locked the door behind him. He then called 911. Officer Lee Sanders, responding to the call within minutes and getting a description of the offenders and their vehicles, began a search for the robbers. A few miles from the store Sanders saw two vehicles pulled over on the side of the road and two men matching Briggs' description of the robbers. When Sanders ordered the men to lie down on the ground, they fled. As he pursued them, they opened fire and escaped. One of the abandoned vehicles was a white pickup truck loaded with trash cans full of cigarettes. Appellant's photo identification card was found in the truck.

On the day following the robbery, Briggs viewed a photo lineup which included a photograph of appellant, but was unable to identify anyone. A month later Briggs was shown another photo lineup containing a more recent photograph of appellant and at this time identified appellant as the man with the gun on the day of the robbery. Also about a month after the offense, Sanders was shown a photo lineup and identified both appellant and another man as the men who fled at the side of the road.

At trial, the defense contested the identification of appellant, calling two witnesses who placed appellant in Waco at the time of the offense. The defense also called co-defendant Darren Harris ² who testified that he was present at the commission of the offense and that the offense was committed by another man, Derrick Hicks, not appellant.

Appellant attempted to call Dr. Raymond Finn as an expert witness, under Tex.R.Crim. Evid. 702, on the reliability of eyewitness testimony. Finn testified on voir dire outside the presence of the jury. The Court of Appeals summarized the content of Finn's testimony as follows:

1. He is a degreed psychologist with emphasis in forensic psychology. His special training and expertise in the area of eyewitness identification come from self education, reading the works of others in the field, working with crime victims concerning memory, and teaching courses in this area.

2. Dr. Finn was apprised of many of the facts of the case including information about the photospreads, by the defense prior to forming his opinions.

3. He is of the opinion that there is a significant chance that Officer Sander's identification of appellant is not as reliable as it would have been had a number of factors not been present, including having seen a photo identification card with appellant's photo on it prior to viewing the photospread.

4. There is a process call[ed] "proactive inhibition" which describes how misidentification has occurred due to seeing a photograph between an event and a later photospread. There have been studies that have demonstrated this effect.

5. He is of the opinion that Mr. Briggs' identification of appellant could have been undermined by proactive inhibition caused by the first photospread. He is of the further opinion that his identification could have been undermined by the fact that appellant was the only subject common to both photospreads, and the fact that appellant's photo was the only full body position.

6. Research refers to the effect of something called "weapon focus." Weapon focus and the emotional trauma associated with it can undermine a person's ability to recall or identify someone. Weapon focus can cause a narrowing of perception.

7. There is a state of mind that occurs when people are traumatized called "state dependent learning." When people perceive an event in a traumatized state, they are less likely to be able to recall when they are asked to do so in a calm state of mind.

8. Research shows that people are generally less able to identify or remember faces from ethnic groups different than their own. This could affect the identifications of appellant by Mr. Briggs and Officer Sanders.

9. There is a term called "memory hardening" which refers to the effect of being asked to recall an event a number of times. This frequent recall has a tendency to alter memories. Consequently, the degree of certainty with which witnesses believe in their identification is not related to accuracy. Someone can be certain, but yet inaccurate. They are not necessarily lying.

Jordan, 877 S.W.2d at 904. The trial court ruled Finn's testimony inadmissible on the grounds that it was not beyond the common knowledge of the jurors, that it would be supplanting the jurors' role in weighing credibility, and that the same information could be brought out with effective cross-examination.

The Court of Appeals held the trial court did not abuse its discretion by excluding Finn's testimony. Id. at 905-06. The court cited Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App.1989), cert. denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990), and Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993), for the proposition that expert testimony concerning eyewitness reliability is not admissible if it is too general and does not fit the specific facts of the case. It reasoned that the same result was compelled in this case, noting that the following fact-specific information was not part of Finn's opinion:

... Dr. Finn's testimony did not consider all of the factors affecting the reliability of the eyewitnesses' identification of Jordan, such as the length of time the witnesses saw Jordan, the lighting conditions at the store or at the highway where Jordan was seen, or the physical descriptions given by the witnesses before the photo lineups were conducted. Dr. Finn did not interview the witnesses, or examine the photo lineup used by one of the witnesses in making the identification, though he admitted that this would be beneficial in forming his opinion.

Jordan, 877 S.W.2d at 905. The Court of Appeals concluded that the "failure of the expert to conduct a thorough, fact specific analysis of the eyewitness identification adversely affected the value of the testimony to the jury...." Id.

Appellant claims the Court of Appeals erred in equating this case with Pierce and Rousseau. He contends Finn's testimony was considerably more "fitted" to the facts than was the expert testimony in those cases. The State contends the Court of Appeals properly held the testimony inadmissible as it did not adequately fit the facts of the case, the subject was within the knowledge of the average juror, and the potential for confusing the issues and misleading the jury was greater than any benefit the jury could have received from the testimony.

I.

Prior to the Rules of Criminal Evidence, the standard for admissibility of expert testimony as to scientific evidence ³ was whether the subject matter had "gained general acceptance in the particular field in which it belongs." Frye v. United States, 293 F. 1013 (D.C.Cir.1923); Zani v. State, 758 S.W.2d 233 (Tex.Crim.App.1988). Texas Rule of Criminal Evidence 702 superseded that standard. Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

Rule of Criminal Evidence 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In Kelly, we held that a trial court's task under Rule 702 is to determine whether the proffered scientific expert testimony "is sufficiently reliable and relevant to help the jury in reaching accurate results." ⁴ Id. at 572 (emphasis added). Focusing on the reliability factor, we noted that unreliable scientific evidence is not helpful to the jury because it frustrates rather than promotes intelligent evaluation of the facts. To be considered reliable, evidence based on scientific theory must satisfy three specific criteria pertaining to its validity and application. ⁵ We further identified a list of nonexclusive factors that could affect a trial court's determination of reliability. ⁶ Most of these factors address the soundness of the underlying scientific theory and technique.

The United States Supreme Court similarly held the Frye standard was superseded by Federal Rule of Evidence 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 585-87, 113 S.Ct. 2786, 2793, 125 L.Ed.2d 469 (1993). In Daubert, the Supreme Court set forth a two-pronged reliability and relevance standard virtually identical to the one adopted by this Court in Kelly. Compare id. at 589-91, 113 S.Ct. at 2795 (trial judge must ensure that scientific evidence is relevant and reliable) with Kelly, 824 S.W.2d at 572 (trial court's task is to determine whether scientific expert testimony is...